Here are 10 reasons to think that [acting attorney general, Matthew] Whitaker may have less capacity to foil Mueller than the current moment—and his formal powers—may suggest.
First, Mueller has spread the wealth around. The normal critique of special-counsel investigations is that they hoard jurisdiction, endlessly expand, and become personal roving inquests into their political subjects’ lives. The opposite is the case with Mueller. He has not merely referred to other Justice Department components matters at the margins of his investigation, such as the Michael Cohen situation in New York. He has also let other components handle matters involving core questions of Russian interference in the U.S. elections, such as the Maria Butina and Elena Khusyaynova prosecutions. The result of this strategic step is not just that Mueller is relatively invulnerable to the charge of any kind of power grab or mission creep. It is also that firing him or reining him in only does so much. If Trump imagines these investigations as a cancer on his presidency, they are a cancer that has already metastasized.
Second, the investigation has already progressed very far. It is one thing to squelch an investigation in its crib. It’s another thing to squelch an investigation that has already collected important evidence and brought key cases. The effort to do so cannot take place invisibly, as a great many prosecutors and FBI agents will be aware of what is happening. None of them has to leak anything for that awareness to find its way to Capitol Hill, because the Hill is already aware of the problem and looking for signs. Mueller is by many accounts writing a report, a step that signals a completed investigation or a completed portion of an investigation. The effort to suppress that report could be politically galvanizing and, in its own way, as damaging for the administration as the contents of that report when they eventually become public.
Third, Mueller does not have to remain silent. Mueller has used silence as a powerful strategic instrument throughout his investigation. He has done this for a variety of reasons, and the silence has served him well. Among other things, it has given his voice, if and when he ever chooses to use it, enormous moral and political power. The day that Mueller holds a press conference or stands before cameras and declares that his investigation is facing interference from the Justice Department will be a very big day, perhaps a game-changing day. If the department suppresses his report, he has the capacity to, as James Comey did after his firing, testify before Congress about what happened. Mueller has not hoarded power or jurisdiction, but he has hoarded moral authority. If Whitaker or his successor seeks to frustrate the probe, Mueller can spend down those huge reserves of credibility. [Continue reading…]